Shreeji Developers, Ahmedabad V. ITO, Ward-3(3)(10), Ahmedabad

ITA 235/AHD/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7856 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard
• Section: 154

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD LOZJH LOZJH LOZJH LOZJH OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA ] YS[KK LNL; ,OA EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW; EK/KQFERK JKW;] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; ] U;KF;D LNL; DS LE{KA DS LE{KA DS LE{KA DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO.235/AHD/2018 ( / ASSESSMENT YEAR : 2010-11) M/S. SHREEJI DEVELOPERS A-403, SHREENATH HILL, OPPOSITE RAF CAMP RING ROAD, VASTRAL, AHMEDABAD 380 018 / VS. ITO, WARD 3(3)(10), 5 TH FLOOR, A- WING, PRATYASHKAR BHAVAN, AMBAWADI, AHMEDABAD. ./ ./ PAN/GIR NO. : ABQFS 6904 C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : --NONE-- / RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. / DATE OF HEARING 05/07/2018 !'# / DATE OF PRONOUNCEMENT 13/07/2018 $% / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-3, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- 3/WD.3(3)(10)/259/15-16 DATED 27.11.2017 ARISING IN THE PENALTY ORDER PASSED UNDER S.271(1)(C) OF THE INCOME TAX ACT, 196 1 (HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 09.03.2015 RELEVAN T TO ASSESSMENT YEAR (AY) 2010-11. ITA NO.235/AHD/2018 MS. SHREEJI DEVELOPERS VS . ITO ASST.YEAR 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE LEARNED COMMISSIONER OF INCOME, (APPE ALS)-3, AHMEDABAD HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN IMPOSING PENALTY U/S. 271 (1)(C) OF THE IT ACT, 196 1 . 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEAL)-3 HAS FAILED TO CONSIDER THE FACT THAT THE APPELLANT HAS SUBMITTED APPLICATION FOR RECTIFICATION OF MISTAKE U/S. 154(2 ) OF THE IT ACT, 1961 ON 22/08/2013 ARISING OUT OF THE ORDER DATED 1 6/09/2013 BEARING REFERENCE NO. APPEAL NO.CIT(A)-1/CC.1(4)/07 1/2013-14 OF THE COMMISSIONER OF INCOME TAX (APPEAL-1) AND TH E HEARING FOR THE SAME IS STILL PENDING WITH LEARNED CIT APPE AL-1. WITHOUT DISPOSING OF THE APPELLANT APPLICATION THE ORDER PA SSED BY LEARNED CIT APPEAL REQUIRED TO BE SET ASIDE AND ISS UE IN QUESTION BE RESTORED BACK TO THE LEARNED CIT APPEAL . 3. YOUR APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR TO AMEND ANY OF THE GROUNDS TILL THE APPEAL IS FINALLY HEARD AND DE CIDED. 3. AT THE OUTSET IT WAS OBSERVED THAT THE ASSESSEE/ HIS AUTHORIZED REPRESENTATIVE NEITHER APPEARED NOR FILED ANY ADJOU RNMENT PETITION AT THE TIME OF HEARING. IT WAS OBSERVED THAT THE LD. CIT-A HAS PASSED EX-PARTE ORDER. HOWEVER, WE DECIDED TO PROCEED TO ADJUDICATE THE ISSUE RAISED BY THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REP RESENTATIVE ON BEHALF OF REVENUE. 4. AT THE OUTSET, IT WAS OBSERVED THAT THE LD. CIT( A) DECIDED THE APPEAL EX PARTE VIDE ORDER DATED 27.11.2017 DUE TO NON-APPEARANCE OF THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILED AN APPEAL BEFORE US AND SUBMITTED IN THE GROUNDS OF APPEAL THAT A RECTIFICATION APPLICAT ION WAS FILED UNDER ITA NO.235/AHD/2018 MS. SHREEJI DEVELOPERS VS . ITO ASST.YEAR 2010-11 - 3 - SECTION 154 OF THE ACT TO CIT-A WHICH IS PENDING FO R THE ADJUDICATION. THEREFORE THE PENALTY ORDER SHOULD NOT HAVE BEEN PA SSED TILL THE DISPOSAL OF THE RECTIFICATION APPLICATION. THE ASSESSEE IN THE GROUND OF APPEAL ALSO PRAYED TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN AC CORDANCE WITH THE LAW. ON THE OTHER HAND THE LD. DR DID NOT OBJECT IF THE MATTER IS REMANDED TO THE LD. CIT(A) FOR FRESH ADJUDICATION AS PER THE PR OVISION OF LAW. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATI VE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDI NG DISCUSSION WE NOTE THAT THE ASSESSEE COULD NOT RAISE HIS POINTS OF CON TENTIONS BEFORE THE LD. CIT-A. IT IS ALSO FACT ON RECORD AS MENTIONED IN TH E CIT-A ORDER THAT VARIOUS NOTICES WERE ISSUED BY THE LD. CIT-A FOR TH E HEARING. BUT THE ASSESSEE FAILED TO COMPLY THE SAME. HOWEVER IN THE INTEREST OF JUSTICE AND FAIR PLAY WE ARE INCLINED TO REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE RAISE D BY THE ASSESSEE AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. IT IS NEEDLESS TO SAY THAT THE ASSESSEE SHOULD CO-OPERATE IN THE APPELLATE PROCEEDING AND ATTEND THE HEARING AS AND WHEN REQUI RED BY LD. CIT(A). HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLO WED FOR STATISTICAL PURPOSE. ITA NO.235/AHD/2018 MS. SHREEJI DEVELOPERS VS . ITO ASST.YEAR 2010-11 - 4 - 6. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/07/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LN L; L; L; L; (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 13/07/2018 PRITI YADAV, SR.PS !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / CONCERNED CIT 4. ) () / THE CIT(A)-3, AHMEDABAD. 5. ,-. //'( , '(# , 12$&$ / DR, ITAT, AHMEDABAD 6. .34 5 / GUARD FILE. % & / BY ORDER, , / //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD